They affirmed U.S. District Judge Ed Reed’s ruling in Reno that granted Harrah’s summary judgment in Jespersen’s case.

But Justice Sidney Thomas, the third member of the panel, disagreed. He said Jespersen raised valid claims that should be presented to a jury.

Jespersen was a bartender at the sports bar in Harrah’s Reno for nearly 20 years with repeated notations in her file saying she was an outstanding employee. For most of those years, Harrah’s had no objections to her choice not to wear makeup, which she said made her feel sick and uncomfortable.

But in February 2000, Harrah’s implemented its “Personal Best” policy that required female bar employees wear makeup. When she refused, the casino fired her.

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Justices Tashima and Silverman ruled companies can set appearance standards that apply differently to women and men without discriminating on the basis of sex as long as those standards don’t impose a greater burden on one sex than the other.

The majority opinion said the Harrah’s policy was legal because it also imposed requirements on men – including barring them from wearing makeup or nail polish and barring long hair – and didn’t unfairly burden women.

Jennifer Pizer, lead attorney for Jespersen, said they were deeply disappointed by the decision which she said “makes hollow” legal protections against sex discrimination in the workplace. She said the ruling says Jespersen “cannot even seek fairness with a day in court.”

Jespersen argued the burden wasn’t equal because cosmetics can cost hundreds of dollars a year and take significant time every day to put on.

Justice Thomas said a jury could reasonably determine Harrah’s acted illegally because Jespersen refused to conform to a sex stereotype – “which is discrimination based on sex and is therefore impermissible under Title VII.”

“When a company acts to enforce sexual stereotypes through grooming standards, it is not immune,” he wrote.

He said a jury should decide the issue.

“A reasonable fact finder could conclude that the Harrah’s makeup requirement imposes an unequal burden on women, that Jespersen was fired for failure to conform to a sex stereotype, or both,” Thomas argued in his dissent. “Darlene Jespersen should be allowed to present her case to a jury.”